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England and Wales Land Registry Adjudicator
You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> Gunnerside Estates Ltd v (1) Terence Milner (2) Cynthia Mary Milner (Easements and profits a prendre : Human Rights law) [2010] EWLandRA 2009_1331 (18 August 2010)
URL: http://www.bailii.org/ew/cases/EWLandRA/2010/2009_1331.html
Cite as: [2010] EWLandRA 2009_1331
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The Adjudicator to Her majesty’s Land Registry
LAND Registration act 2002
IN the matter of a reference from hm land registry
BETWEEN
APPLICANT
and
(2) Cynthia Mary Milner
RESPONDENTS
Property Address: Aygill Cottage, Angram, Thwaites, Richmond
Before: Mr. Colin Green sitting as Deputy Adjudicator to HM Land Registry
At: Leeds Combined Court Centre
Applicant Representation: Mark Sefton of counsel
Respondent Representation: Terence Milner
DECISION
KEYWORDS: An application to cancel a unilateral notice in respect of shooting rights on the basis that such rights interfered with the registered proprietors’ human rights under Article 8 of the European Convention on Human Rights and Article 1 of the First Protocol. Human rights found to have no relevance to the question of cancellation, but if relevant found that the shooting rights do not interfere with the Convention rights, but the cancellation would adversely affect the Convention rights of the owner of the shooting rights.
CITATIONS: Law of Property Act 1922, Schedule 12; Land Registration Act 1925, ss.5(b) and 70(1)(j); Land Registration Act 2002, ss. 29, 32 — 36, 117 and Schedule 3; Human Rights Act 1998, ss. 3, 4 and 6; Article 8 of the European Convention on Human Rights and Article 1 of the First Protocol; Campbell v. MGN Ltd [2004] 2 WLR 1232; Aston Cantlow PCC v. Wallbank [2003] UKHL 37; Countryside Alliance v. Attorney General [2007] UKHL 52; X and Y v. The Netherlands (1985) 8 EHRR 235
Background
1. In this reference, none of the relevant facts are in dispute. The Respondents, Mr. and Mrs. Milner, are the freehold owners of land known as Aygill Cottage, Angram, Thwaites, Richmond (“the Land”) registered under title number NYK231156. This was a first registration on the 2nd February 2000. As noted in the property register, the Land was formerly copyhold of the Manor of Muker, and the rights secured to the Land by Schedule 12 to the Law of Property Act 1922 were excepted from registration. All former copyhold land was converted into land of freehold tenure by the 1922 Act, but it preserved indefinitely the manorial rights of the lord, including those in respect of shooting, see: ss. 128(2), 138 and paragraphs (4) to (6) of Schedule 12.
2. Gunnerside Estates Ltd, the Applicant, is the owner of the manorial rights expected from registration (including shooting rights), which it acquired, along with other land and rights for £9M under a Rule 72 Transfer of the 1st February 1995 from the Right Honourable William Robert The Earl Peel, who in turn had acquired them from the Lingholm Trust Ltd. under a conveyance of the 18th July 1947.
3. Mr. and Mrs. Milner purchased the Land under a conveyance of the 4th November 1980, which expressly provided that they held the Land:
“SUBJECT to the rights of the Lords of the Manor of Muker in Swaledale in or to the mines and minerals and the sporting and other rights (if any) preserved by the Law of Property Act 1922”
4. On Mr. and Mrs. Milner’s first registration on the 2nd February 2000, they will have been registered subject to such overriding interests as affected the Land (s. 5(b) of the Land Registration Act 1925) which will have included manorial rights of all descriptions (s. 70(1)(j) of the 1925 Act) including the shooting rights.
5. On the 20th May 2009, Gunnerside registered a unilateral notice to protect the shooting rights. The reason for this was that, under s. 117(1) of the Land Registration Act 2002, certain interests specified in Schedule 3 (unregistered rights that override registered dispositions) will lose their overriding status from the 13th October 2013. This includes manorial rights (paragraph 11 of Schedule 3). The removal of overriding status is ameliorated by s. 117(2)(b), that provides for the registration (free of charge) of a notice in respect of such an interest by the 13th October 2013. Such a notice will preserve the priority of the interest on a registered disposition for valuable consideration (s. 29(2)(a)(i)). Given that the shooting rights were excepted from the registration of the Land in 2000, it is necessary to register a notice in respect of those rights prior to the 13th October 2013 in order that they retain their priority on a sale.
6. By an application dated the 30th July 2009, Mr. and Mrs. Milner applied to cancel the unilateral notice. Gunnerside objected to the application on the 28th July 1999, and on the 23rd October 2009 the dispute was referred to the Adjudicator under s. 73(7) of the 2002 Act. At the hearing before me, Gunnerside was represented by Mr. Sefton of counsel and Mr. Milner represented himself and his wife. I have been greatly assisted by them both.
Issues and determination
7. Under s. 32(1) of the 2002 Act, a notice is an entry on the register in respect of the burden of an interest affecting a registered estate. The fact that an interest is the subject of a notice does not necessarily mean that the interest is valid, only that the priority of the interest, if valid, is protected for the purposes of s. 29 (s. 32(3)). Therefore, on the registration of Gunnerside’s notice, there was no determination that it was a valid interest affecting Mr. and Mrs. Milner’s title. One of the circumstances in which the Registrar may approve an application for an agreed notice is that he is satisfied as to the validity of the applicant’s claim (s. 34(3)(c)) but that will not have applied here in respect of a unilateral notice.
8. Although s. 36 provides for the cancellation of a unilateral notice on the application of the registered proprietor, there is no express provision as to the grounds on which it may be cancelled. However, in the light of the provisions as to registration of notices, cancellation can only be on the footing that the beneficiary of the notice did not have or no longer has, a valid interest, that is, an interest affecting the registered estate, or that it is an excluded interest under s. 33. This means that there is no discretion on the part of the Registrar, or Adjudicator, and that if the beneficiary of the notice remains entitled to a valid interest, the notice must remain, but if he does not the notice must be cancelled. Prima facie, the existence of a registerable interest is the only issue that can be determined by the registrar, and in turn the only issue for the Adjudicator to determine. In this case however, there is no dispute that Gunnerside is the owner of the shooting rights, and that they affect the Land.
9. Mr. and Mrs. Milner’s case is as follows: the existence of the shooting rights means that any persons authorised by Gunnerside could, without notice, go onto the Land with guns and live ammunition to shoot, putting Mr. and Mrs. Milner and their family at risk of being shot. They have proposed a 200 metre exclusion zone around the house on the Land to ensure their safety, but Gunnerside has not been prepared to agree to this. Mr. and Mrs. Milner say that the Land is primarily a home and garden and it is impractical to expect any type of sport to be carried out on the Land.
10. As regards Mr. and Mrs. Milner’s safety concerns, it is perhaps significant that although the Land has been subject to shooting rights since their purchase in 1980, there is no suggestion that any of the matters that concern them have ever taken place. This is due, no doubt, to the existence of firearms and health and safety legislation. There is no reason to think that the position will change as the result of the registration of the shooting rights, which was in order to protect the priority of those rights on a future disposition by Mr. and Mrs. Milner.
11. Although such concerns are the reason why the application to cancel the notice has been made, the legal basis is that the shooting rights interfere with Mr. and Mrs. Milner’s human rights under Article 8 of the European Convention on Human Rights and Article 1 of the First Protocol. In considering this issue, it must be borne in mind what affect the cancellation of the notice would have. If I were to direct that effect be given to the application – so that the notice was cancelled – on a registerable disposition of the Land for valuable consideration, the shooting rights would not be enforceable against the purchaser. In fact, that would now be the case even if the disposition occurred before the 13th October 2013, as an interest loses its overriding status under Schedule 3 once it is the subject of a notice, and that status cannot be regained, even if the notice is cancelled (s. 29(3) of the 2002 Act).
12. Nevertheless, since the shooting rights were and remain, an interest whose overriding status under the provisions of the 1925 Act affects the Land while Mr. and Mrs. Milner are proprietors, the Land is subject to those rights during their period of ownership, whenever that should end. Therefore, even if the notice is cancelled, this will not affect the continued enforceability of the shooting rights, until Mr. and Mrs. Milner sell the Land. Even assuming that the shooting rights interfere with their human rights, my decision as to whether the notice should be cancelled will not prevent such interference. The registration or non-registration of the unilateral notice has no bearing on such matters. In those circumstances, their human rights can have no significance as far as the issue of cancellation of the notice is concerned, which is the issue I have to decide.
13. Quite apart from that, there are further difficulties with Mr. and Mrs. Milner’s case. The Human Rights Act 1998 does not create any new cause of action between private persons (Mr. and Mrs. Milner and Gunnerside), see: paragraph 132 of the speech of Baroness Hale in Campbell v. MGN Ltd. [1]:
“The 1998 Act does not create any new cause of action between private persons. But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties’ Convention rights.”
Mr. and Mrs. Milner rely on no independent cause of action.
14. The affect of Convention rights is limited to the statutory consequences set out in ss. 3 and 6 of the 1998 Act. Section 3(Interpretation of Legislation) provides:
“(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given affect in a way which is compatible with the Convention rights.
(2) This section—
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.”
If legislation cannot be construed in such a way as to be compatible with Convention rights, the court can make a declaration of incompatibility under s. 4, but that option is not open to me as those provisions do not apply to this tribunal.
15. Sections 6(1) to 6(3) (Acts of Public Authorities) provide:
“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section “public authority” includes—
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.”
16. Given the definition in s. 6(3)(a), this tribunal constitutes a public authority, so that I must, as far as it is possible to do so in accordance with legislation, act compatibly with the rights granted by the Convention. Given the limited issue and options open to me in considering an application under s. 36 of the 2002 Act (paragraph 8 above), there is a strong case for my having no discretion in the matter and – even assuming incompatibility – for my not being able to act otherwise by reason of the provisions of primary legislation (s. 6(2)(a)). For the purposes of considering the matter, I shall assume however that a Convention right is capable of being taken into account on an application under s. 36; alternatively, that an interest that is incompatible with a Convention right is not a “valid” interest for purposes of ss. 32 to 36 of the 2002 Act (applying s. 3(1)). On that footing, I now turn to consider the two rights relied upon by Mr. and Mrs. Milner.
17. Article 8 of the Convention provides:
“Article 8
Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
18. Paragraph 2 cannot apply in this case as the alleged interference with Mr. and Mrs. Milner’s paragraph 1 right by the shooting rights will be by Gunnerside, the current owner of those rights, which is not a public authority. Mr. Milner suggested that since “public authority” includes this tribunal, I should not interfere with he and his wife’s paragraph 1 right. For the reasons given above however, there would be no such interference by my allowing the notice to remain registered. The shooting rights are enforceable during Mr. and Mrs. Milner’s ownership of the land irrespective of whether those rights are subject to a unilateral notice.
19. On the other hand, the shooting rights will be affected if they are no longer registered, as they will not be enforceable against a purchaser from Mr. and Mrs. Milner: Gunnerside will lose priority on a sale of the Land if the unilateral notice is cancelled. Therefore, I consider that the continued registration would be “necessary…for the protection…of the rights of others”.
20. Article 1 of the First Protocol provides:
“Article 1
Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
21. Mr. and Mrs. Milner’s “possession” is the Land, which they acquired subject to the shooting rights, and to which it remains subject. Accordingly, the shooting rights, and their protection by notice to retain priority on a future sale, cannot interfere with Mr. and Mrs. Milner’s possessions. In the words of Lord Hobhouse in the chancel repairs case of Aston Cantlow PCC v. Wallbank [2] at paragraph 91:
“…the material Article is Article 1 of the First Protocol which endorses the entitlement to the peaceful enjoyment of a person's possessions and prohibits depriving a person of his possessions, subject to certain qualifications. The word ‘possessions’ has been considered by the European Court of Human Rights, in particular in the cases of Marckx v Belgium (1979) 2 EHRR 350 and Sporrong v Sweden (1982) 5 EHRR 35. It applies to all forms of property and is the equivalent of 'assets'. But what is clear is that it does not extend to grant relief from liabilities incurred in accordance with the civil law. It may be that there are cases where the liability is merely a pretext or mechanism for depriving someone of their possessions by expropriation but that is not the case here. The liability is a private law liability which has arisen from the voluntary acts of the persons liable. They have no Convention right to be relieved of that liability. Nor do they have a Convention right to be relieved from the consequences of a bargain made, albeit some 200 years earlier, by their predecessors in title.”
22. In addition, I must act compatibly with both parties’ Convention rights. Whereas on the one hand, cancellation of the unilateral notice would not affect Mr. and Mrs. Milner’s peaceful enjoyment of their “possession” – as the land is currently subject to the shooting rights quite apart from registration – on the other hand, the cancellation would deprive Gunnerside of the peaceful enjoyment of its possession (the shooting rights over the Land) on a future sale.
23. Mr. Milner made a number of additional submissions. It is fair to say that he does not want to extinguish Gunnerside’s shooting rights altogether, but only to secure peace of mind for himself and his family concerning the discharge of loaded firearms in or close to his house and garden. I can deal with his principal submissions as follows.
23.1. This tribunal has no power to modify private rights between parties, and impose a 200 metre exclusion zone for the exercise of the shooting rights.
23.2. In respect of Article 8, reference was made to paragraph 15(3) of the speech of Lord Bingham in Countryside Alliance v. Attorney General [3]. That deals with the meaning of the word “home” and whether it extends to land over which a sport is conducted. I do not see how this assists his case, since even if the whole of the Land is to be treated as the home of he and his wife, this has no bearing on any of the issues that I have dealt with above.
23.3. Also in respect of Article 8, Mr. Milner referred to paragraph 23 of X and Y v. The Netherlands [4], which is as follows:
“The Court recalls that although the object of Article 8 (art. 8) is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life (see the Airey judgment of 9 October 1979, Series A no. 32, p. 17, para. 32). These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves.”
I do not consider that this would allow me to depart from the analysis I have given above, and although a State might be obliged to adopt measures regulating private rights between individuals, this Tribunal has no power to do so.
23.4. Mr. Milner relied on a number of passages from Foster, Human Rights and Liberties, Second Edition and Halstead, Unlocking Human Rights, but they provide no real assistance in resolving the issue before me.
23.5. Gunnerside’s rights over the Land are small in terms of both value and extent in comparison with its total shooting rights over land in the area, and are outweighed by Mr. and Mrs. Milner’s human rights over the Land. In the light of my above findings, there is no issue as to proportionality.
23.6. Mr. Milner emphasised that he was relying on both Articles 1 and 8, read in conjunction, but I do not consider that his case is improved by doing so. The objections set out above remain.
24. In summary: I do not consider that the issue of human rights has any relevance to the question of whether Gunnerside’s unilateral notice should be cancelled, as the matters about which Mr. and Mrs. Milner complain will be unaffected by such cancellation. The provisions of the 1998 Act are not even engaged in this case. However, if and to the extent that they are, and assuming that I am able to take such matters into account in determining the application, the shooting rights do not interfere with the Convention rights relied upon by Mr. and Mrs. Milner, but the cancellation of the notice will adversely affect the Convention rights of Gunnerside. Since Mr. and Mrs. Milner accept the existence of the shooting rights over the Land, I must direct the Registrar to cancel their application.
Costs
25. Gunnerside wishes to recover its costs, but this is opposed by Mr. and Mrs. Milner, both as to liability and amount. Realistically, there are only two orders for costs that I can make: that Mr. and Mrs. Milner pay Gunnerside’s costs of the reference, or no order as to costs. Gunnerside should serve and file a detailed schedule of its costs since the date of the reference within 14 days of the date of this decision, and Mr. and Mrs. Milner should file and serve written reasons as to why there should be no order for costs against them, and any reductions they consider appropriate in the amount of Gunnerside’s costs, within 14 days thereafter. I will then decide the issue of costs and if necessary, determine the amount.
26. This reference was originally linked with reference 1332 between Gunnerside and James William Peters. Gunnerside served a combined Statement of Case in respect of both references. On sight of the Rule 72 Transfer of the 1st February 1995, Mr. Peters withdrew his application to cancel Gunnerside’s unilateral notice, and neither party applied for an order for costs within the time directed. Indeed, Gunnerside’s solicitors stated by a letter of the 9th February 2000 that they did not intend to seek an order for costs. In the light of this, Gunnerside’s schedule of costs in respect of this reference should only include one-half of the costs of the Statement of Case and one-half of any other matters that that are attributable to both references. Obviously, any costs wholly attributable to reference 1332 cannot be included in the schedule.
Dated this 18th day of August 2010
By Order of The Adjudicator to HM Land Registry